Regular EULA + Readable EULA: Seemed like a good idea at the time?

My friend abby directed me to Aviary.com, a site that provides web based tools for creating art.  Its mission is apparently to make it easy to create derivative works from the works of others that have also been created on or submitted to Aviary.com.  The Terms of Use are particularly interesting.

First, in comparison to the Facebook Terms of Use, Aviary.com at least appears to be somewhat more limited in the rights that it claims to submitted works:

You acknowledge and agree that if you use any of the Services to contribute User Content to the Site in such manner as to make it available to all users or to permit third parties to contribute Content through your User account, Aviary will have a non-exclusive, worldwide, royalty-free, transferable, sublicensable (including, without limitation, by means of a Creative Commons License) right, under all of your intellectual property rights, to copy, cache, publish, display, perform, distribute, translate and store such User Content, and to allow third parties to do so in connection with the marketing or promotion of Aviary, the Site or the Services by such third parties.

Aviary.com is still claiming the right to publish, distribute, and sublicense.  However, they don’t reserve the right to create derivative works, so it is arguable that they’re only trying to claim the rights necessary to operate the service.  Further, while they do state that the right is sublicensable, they seem to be limiting third-party licensing to situations promoting Aviary.

More interesting, though, is the fact that the Terms of Use are actually two sets of terms of use: a “Legalese” version and a “Summary” version.  Given Aviary.com’s stated goal of bringing easy reuse and licensing of works to the masses, this seems like a great idea for the users.

However, what if they don’t match?  Which one controls?  Isn’t it defeating the purpose of the legalese contract language if you have summary language printed right next to it that could be used to modify the scope of the legalese?

Examples and analysis after the jump…